Friday, April 5, 2013

Is the Pro-IP Position Pro-State?

Among the onslaught of comments from the anti-IP crowd in the IP posts here at EPJ is the frequent refrain:

How can Wenzel be a libertarian if he is for the coercive intervention of the state against individuals who have come across an idea that they did not steal?

The answer is I am in favor of no such state coercion. I am against all state interventions. I am in favor of a private property society. Consider the Hertz example that I used in the debate with Norman Stephan Kinsella.

Hertz rents a car to B, who is supposed to return it in a week, but who instead sells it to C. B has removed all stickers and other identifying marks from the car that would identify the car as belonging to C, so that C is not aware that the car is a Hetrz rental. C is innocent relative to the broken contract between Hertz and B. Under existing law, Hertz can take the car away from C.

Within the current society, where the state has a monopoly on coercion, Hertz would have to call in the state to get the car back from C. This does not mean that Hertz would use the state in a private society world, indeed there would be no state coercion apparatus. However, since we do not live in such an ideal world, Hertz is forced to use this arm of the state.

It is no different than a person using government created sidewalks, streets, etc. There may be no alternatives. It would be absurd to charge someone using the sidewalks as being pro-state.

It's is the same for those in favor of intellectual property protection based on the guidelines of private property and the sanctity of contract. If A has a contract with B by which A reveals a formula to B with the understanding that B does not reveal the contract to anyone and B violates that contract by telling C, then A has every right in such a society to demand that C stop using the formula in any fashion, including selling or revealing it in any way to others. (Note well: A only has a claim if he can show that C obtained the formula via B violating the contract, not if C independently discovered the formula.)

The fact that A may call in, under the current state of affairs, the government to stop the property violation does not mean that A is in favor of government. It may simply mean that, like sidewalks and roads, government has chosen to monopolize the sector. In a private property society, there would be some method to stop private property violations. Presumably, Hertz and A would both use such methods in a private property society. Thus, protection of property, real or intellectual, is not something that is tied to the state. It would occur in a private property society where the state does not exist. There is no connection between pro-IP advocates and the state any more so than there is a connection between dog walkers and their use of sidewalks or car drivers and their use of roads. In a private property society, all would use non state methods to accomplish their goals.

Note: I can hear now the mad howls of the anti-IP crowd that the formula C is using can not be scarce. Well, under a tortured definition of scarce, it may not be. However, if A is entering into a contract with B to protect a formula, it certainly means that A and B must believe the idea is scarce, otherwise why would they go through the effort of agreeing to a contract and, what's more, why would B go through the motions of agreeing to the contract which may involve risk of penalty if he reveals the contract? If the idea is not viewed by B to be scarce in the common manner in which the word scarce is used and by the way the term is understood in economics, why would he even agree to enter into a contract? No one is entering into contracts with sellers of air. Air is under most conditions non-scarce, superabundant. When was the last time in your daily routine that you agreed to a contract to breathe the air? Air is a non-scarce item, as Ludwig von Mises put it:

The available supply of every commodity is limited. If it were not scarce with regard to the demand of the public, the thing in question would not be considered an economic good, and no price would be paid for it.

Hint to the anti-IP crowd: No one makes contracts or fights over or has legal battles over free air when it is superabundant. If someone wants to protect a formula, it means it is scarce in the economic sense. If someone is agreeing to a contract over some good, it is an economic good and scarce in the economic sense. None of this is tied to a pro-state position.

"Since the human race started from the point of greatest poverty, that is, from the point where there were the most obstacles to be overcome, it is clear that all that has been gained from one era to the next has been due to the spirit of property.

This being the case, can anyone be found anywhere in the world who is hostile to the idea of property? Does not everyone see that it is impossible to imagine a force in society that is at once more just and more democratic? The fundamental dogma of Proudhon himself is mutuality of services. On this point we are in agreement. The point on which we differ is this: I call this dogma property, not mutuality of services, because careful analysis assures me that men, if they are free, do not and cannot have any other property than the ownership of value, or their services."

"There are people in whose eyes property appears only in the form of a plot of land ora sack of coins. Provided only that the land's sacrosanct boundaries are not moved andthat pockets are not literally picked, they are quite content. But is there not alsoproperty in men's labor, in their faculties, in their ideas—in a word, is there notproperty in services?"-Bastiat (Economic Harmonies)

Bastiat was pro-IP at least for copyright. From a speech he gave in 1847 (in French but Chrome will translate it or Google Translator) -

"Gentlemen, what I have said about the property in general, it seems difficult not to recognize that literary property is within the law. A book, is it not the product of a man's work, of these faculties, his efforts, his care, his vigils, employment of his time, his advances? Should we not have this man to live while working? Why did he not receive voluntary services of those whom he renders services? His book, why would it not be his property? The paper manufacturer, printer, bookseller, bookbinder, who have materially contributed to the formation of a book, are paid for their work. The author, will he be excluded only compensation which his book is the occasion?"

The interpretation of the first one though depends on whether you believe in IP already though. Ownership of "services and values" to me means you have the right to produce and sell what you want - and no one can stop you just because they did it first.

As for your summary - The comments section is filled with people making carefully reasoned cases against IP, I don't think I can recall a single comment on the anti-IP side that was an appeal to authority. However your comment WAS an appeal to authority, with a little bit of details added.

Saying you believe in contract IP theory by Rothbard with property rights defined by Bastiat does not move the discussion forward over the core of the issue: Does a broken contract between A and B place obligations on C? The anti-IP side has discussed this at length in the comments without any appeal to authority.

And there have been a number of "appeal to authority" references made on both sides.

And I don't endorse Rothbard. You can play the Rothbard card from your hand if you want. I can play several cards that will trump him I assure you (including Bastiat).

But as for the debate between pro-IP and anti-IP I have yet to see. Until the anti-IPers are able to respond to the central question of whether as a society we choose to value and reward the efforts of IP producers, and if not, why not, we haven't actually had a debate.

But I am commenting for the intellectually honest. Not the "hangers on".

Really, I'm already bored with this topic because the final nails have been pounded into Norman's anti-ip coffin.

Given that he's such a prick, I'm happy to see his work flushed down the toilet personally...but if it had been good work on his part to start I would have sucked it up and accepted his ideas even if he was a prick.

Why don't you ever answer the criticisms of your position instead of just repeating your position?

The 3rd party that uses the car, means HERTZ DOESN'T have the car anymore.

If a third party overhears B and C talking about something, or merely sees something being used and figures it out in his own brain and starts doing the same thing. B and C still have the knowledge to keep doing it.

Nothing's been taken from A, B, or C.

Contracts are not sufficient to create any kind of a copyright, or patent system like we have today.

That was Kinsella's whole point. Rothbard had imagined through some sort of contract law that it was possible. Kinsella disagrees with Rothbard, because the contracts can not bind third parties that figure it out on their own for whatever reason. (Overhearing, seeing it written on a park bench, noticing it being done an reverse engineering it, etc.)

We've been over this. Move the conversation along instead of repeating stuff that Kinsella's already responded to.

You need to answer the question WHY is somebody who never signed any contract with the person who came up with the original idea bound to it?

Why does the person who originally thought up the idea, have VETO power over how the third party uses his brain, hands, and physical property?

You still haven't answer that.

You still haven't told us what your view of IP is. All you've done is try to (unsuccessfully) pick apart Kinsella's arguments. But even if you're successful, Kinsella isn't the only person in this debate. Just because Kinsella's arguments are wrong, doesn't imply IP is justified.

Why don't you give us your rational for why IP is a legitimate concept, along with your precise definition of IP. So far I haven't heard either.

No, it's not that Hertz does not have the car anymore, it's that C does not have the rightful title to the car!

Perhaps a better example will illustrate this point. Assume I sell you a plot of land with a house whose interior is built with American chestnut. American chestnut is no longer available and is considered something of a historical artifact. When I sell you the house, I put into the contract a restrictive covenant that you cannot tear out the chestnut interior. Maybe I do this because I love the American chestnut. Maybe my grandpa built the house with chestnut trees from the property and I want to honor his memory. Whatever, the reason is not important.

If you sell the house to Roscoe, and don't tell him about the restrictive covenant on the property title, and Roscoe tears out the chestnut, Roscoe is in violation of the restrictive covenant. When Roscoe bought the house, he did not buy the right to tear out the chestnut, because you did not have that right to sell to him.

I would note also that even IF C obtained the formula by B violating the contract, It's B who's in violation, not C. I don't see how this makes C bound by anything.

When we're dealing with tangible assets like a car, as soon as C found out B violated the Contract, Hertz has the right to seize the Car and sue B for breaking the contract. The only thing C is out of is the ability to drive the car.

But in the case of patterns of information there's nothing to seize from C. Unless you're going to advocate lobotomizing C so it's not in his brain anymore (a la "Paycheck") there's really nothing to take. What are you going to sue C for. Using some information that was given to him? You can sue B all you want. But you have no veto power or claim over Cs actions.

Chris: I know. I was agreeing with you. I was taking it one step further.

You write. "Since C obtained the formula in this manner, A can demand that C not use the formula."

This is what I question. Why? Why does the method of C getting the information relevant to weather he can use it or not. He didn't sign any contracts at all. A has a right to sue B for damages. Perhaps C's use of the information would be part of those damages that A sues B for. But I fail to see how A has any claim at all on C.

What if B dies with the "formula" in his hand and C finds it blowing in the wind? What happens if B is incapable of keeping it secret, C discovers the formula, A prevents B from using the formula but can't stop C from using the formula. Now C has legitimate use of the formula and he let's B copy it from him with no strings attached?

If we assume slavery is legitimate property then Wenzel's Framework could be used to justify the slave remaining in the property of the slave holder even if the slave tried to free himself.

Since the function of current IP law is to use force to suppress immitation, it is necessary to maintain two major fictions:

1) That A can own patterns of information in C's head (Intellectual Property)

2) That we can know what is in other people's heads or how it got there (Psychology)

So long as C has committed no real crime in learning information that A had hoped to keep secret, then C is not obliged to act as if he does not know what he does know.

The faux 'intellectual property right' is merely the excuse to treat other persons as if they are themselves property and to control them by violence. IP is an elaborate rhetorical ruse to justify coercion. What the IP folks are struggling against is not theft. It is competition.

However, Mr Wenzel's 'Rothbardian IP' does not promote that coercion, and so it does not need to maintain the two major fictions. Why he continues to do so is a mystery which we can only guess about because of the 2nd major fiction: we can not read his mind, we can only read his arguments.

"A & B have the contract. If C obtains the formula from B, than B has broken the contract between A & B."

This sounds like it might be a simple matter, but there are surely times when it would be pretty murky just how C obtained the "formula." How do you determine this in the absence of an appeal to a state authority? I mean, what is the mechanism here? And if C is not party to any contract, why should he be made to answer to A for anything that he is doing?

"Since C obtained the formula in this manner, A can demand that C not use the formula."

But why, if C is not party to any contract with A? And how, in the absence of a state-enforced IP regime? Again, what's that mechanism look like?

"If C had independently come up with the formula himself, then A could not make such a demand."

How do you determine this, again? If C isn't party to any contract with A, why is C answerable in any way whatsoever to A due to the supposed actions of B?

You seem to be arguing that you agree C isn't party to a contract, but then go on and talk as if C is in fact party to a contract.

"But C is not punished, only denied the use of stolen or misused property. Everything goes on as it did before. Pick your business partners wisely should be the moral."

It's not about 'punishment' per-se. The question is about restricting C's actions. Before C learned the secret we presume that C would have been within his rights to write down a certain sequence of words and offer to sell the paper to anyone, regardless of the likelihood or C's knowledge of the value of doing so.

And yet upon learning from B that that a paper imprinted with that sequence of words will fetch a price, the actions C may rightfully perform become restricted. A is somehow justified in using force to prevent him from performing them. How did C lose this right he previously held?

Seth, there are certain areas of IP that I am not comfortable with or have limited knowlege of, and I made comments about "certain IP claims of late" and "myopic corporate lawyers" protecting the fashion in which a DVD is returned in a self addressed stamped envelope. Not to mention a farmer whose crops are inadvertently cross pollinated with a neighboring farm's Monsanto patented drought resistant soybeans. I am not sure if this is just governmental corruption or the limits of IP protection itself.

Please stop embarrassing yourself by using the Hertz example. If Hertz loans the car to D and then D sells the car to T, then HERTZ IS OUT OF A CAR! If you tell your formula to X and then Z gets the formula through whatever means (bribing X for it, looking over X's shoulder, independent discovery), YOU STILL HAVE THE FORMULA TO USE AS YOU WISH! This is the essence of scarcity and rivalry in the economic sense. It is not just Tucker and Kinsella who use this definition:

You state that in RW's Drudge formula example that the he, the author, "still has the formula to do with what he wishes." What the author obviously wishes is to exchange the formula on the open market so that they might be reimbursed for its development. Without some kind of right to that formula, there is no marketability, as far as the author or creator is concerned. So, without some kind of IP claim there is very limited incentive to create the formula in the first place. That leaves incentives for the development of all, "formulas," in one place... the state. This is why, at least from my embarrassingly small understanding of the issue, the ant-IP argument is seen as pro-state.

I have to assume you have some practical experience with scenarios involving supply and demand and the effect on pricing.

But alas a spade is a a spade and my gut tells me you and many others here on the anti-IP side are insincere in your evangelizing for the individual and their rights to life, liberty and the pursuit of happiness.

This is ridiculous. No one has a right to a sale or to marketability. If a new car manufacturer comes into the market, it is going to causes damages to existing manufacturers. If a better monetary unit comes into being an old one may lose its marketability. So what?

What seems "insincere" to me is the belief that because someone had an idea first, that person now has a right to use force to stop other people from using their labor and their property in accordance with that idea.

Do you even understand what the logical conclusion of such a position is? You would have to seek permission in order to use any idea that wasn't wholly your own. There wouldn't be language, music, science, manufacturing, etc. because they all built on preexisting ideas. Society would literally crumble.

Bob, I have to be honest. Sometimes I think you are the Andy Dick/TMZ correspondent of the Austrian economics set. But damn, this was the most lucid pro IP explanation I have seen yet and for that I say, thank you.

It seems to be Wenzel's contention that he, in his formula example, should have rights to all future potential revenue from it.

Since he can't claim loss of ownership (unless we are changing the definition of ownership) on his secret, he is really claiming loss of potential revenue.

In order to accept this claim, we would have to accept that one can "own" an idea, which is one of the points in contention here.

It is a bit of circular logic.

Another strange point here is that Wenzel exempts "independent discovery" but no other method of obtaining the information. This seems arbitrary to me.

I completely agree with the Hertz example as doable without the state. The contract between Hertz and B could even protect C without his consent. If B sells the car and Hertz repossesses it, the contract could specify that B has to compensate both Hertz and C. But it cannot bind C as he never agreed to it.

Once you change the example from a physical object (car) to a non-physical one (idea/formula/etc) the argument changes from loss of ownership to loss of potential revenue.

The contract was formed to restrict B's right to distribute the formula because of the *potential* value if used to produce an actual good. But what if person C never produces anything? How has A been made worse-off by B's actions?

Additionally, C having the formula does not mean A can no longer have it (that's where your Hertz analogy falls flat), nor does it impede A's available actions in the least. An idea can be copied infinitely with no reduction in utility to its original creator.

Rothbard left the A vs. C. scenario open for the free market to sort out....from my estimation is the last true legitimate objection anti-ip people have...but they don't trust the free market to deal with it...so they want to justify the initial theft/breach to start.

Yes, Nick, you hit the nail on the head. The question at hand appears to be: Would private law recognize restrictive covenants on digital goods?

While I am at it, it's interesting that restrictive covenants were used in the south to keep minorities from buying property in certain neighborhoods. As abhorrent as that is, it does not violate the NAP.

If there's no fraud involved one way or the other in how C gets the information, A has absolutely no claim against C.

(And for the record, I would disagree with the above hypothetical common law court -- see my above post. I was merely pointing out that even if you assume that it would be legitimate through some extended interpretation of contract law, there's still no case for IP.)

For it to be anything other than this you must establish why the application of force is justified, i.e., a rationale compatible with the non-aggression principle for intervening in people's lives and limiting their non-aggressive action. (And redefining aggression to include peaceful copying, emulation, and derivation is illegimate.)

"...while no illiterate person can read, it is a mere non distributio medii to conclude that any literate person can read. The fact is that relatively few literate persons can read; the proportion appears to be quite small. I do not mean to say that the majority are unable to read intelligently; I mean that they are unable to read at all—unable, that is, to gather from a printed paragraph anything like a correct idea of its content. They can pretty regularly make out the meaning of printed matter which is addressed to mere sensation, like news-matter, statistics, or perhaps an “informative” editorial or article, provided it be dosed out in very short sentences and three-line paragraphs; but this is not reading, and the ability to do it but barely implies the exercise of any faculty that could be called distinctively human. One can almost imagine an intelligent anthropoid trained to do it about as well and to about as good purpose; in fact, I once heard of a horse that was trained to do it in a small way. Reading, as distinguished from this kind of proficiency, implies a use of the reflective faculty, and not many persons have this faculty. ... There is much to be said on this topic, but it is enough to remark here that literacy will not do duty for the power of reflective thought where such does not exist, nor does a state of literacy presuppose its existence."

By Albert Jay Nock. Excerpted from an essay taken from “The Gods’ Lookout,” February 1934.

I never saw anyone anywhere say this about your argument and I've read 100's of comments. Are you making this up to pretend the anti-IP crowd is as poor at understanding arguments as you proved yourself to be?

We all attempted to listen and understand what you said. You just didn't have anything to say.

When I face a group of well meaning and seemingly intelligent people and some conflict or disagreement ensues, the most likely reason is a misundertanding. The most objective and productive course usually for me is to consider the possibility that the misunderstanding might be my own. At that point I read or listen again. I try my best to put the hostility aside and consider ALL the possibilities. I find it helpful lastly to consider the endgame or who ultimately benefits.

Personally, I am indebted to RW for challenging SK's authorship and authority, though RW doesn't score many points for style. That RW hasn't presented his own utopian dream does not matter to me at the moment. Besides, most people's utopian scenarios kind of scare me.

Independent discovery sinks Rothbard's copyright theory. Since Wenzel has no right to stop an independent discover from using the Drudge formula, he has no property right in the formula in the first place. Since contracts only involve transferring titles to property and there is no property right in the formula, the contract with an NDA transfers NO property right in the formula. Thus, a 3rd party is not stealing the formula since there was no property right to take.

The "do not copy" clause is a only a contracted restriction that applies to the parties in the contract. Contracts cannot create new property rights. Also, "do not copy" alone is unenforceable since there's no penalty spelled out. It's a contracted obligation so the penalty needs to be also contacted.

The contract with the NDA is just if Person A acts so that condition X is met, say whispering a secret into Person B's ear, then Person B's property title to P,e.g. an amount of money, will transfer to Person A. Also, if condition Y is met, revealing the secret, then Person B's property title to M, an amount of money, will transfer to Person A. There's no title of ownership to the secret being transferred, only titles to money.

Really, how does Black happening to see the mousetrap have anything do do with nullifying his existing property rights? Rothbard claims "no one can acquire a greater property title in something than has already been given away or sold," but Black already could, in accordance to rights, make the mousetrap before he even saw the mousetrap as evident that he could independently discover the mousetrap design. Black is only gaining the knowledge by happening to see the mousetrap, not having an existing right to use that knowledge nullified.

The anti-IP position is pro-aggression in the sense that theft is a form of aggression. Not going to rehash this here (see the other threads), but the act of theft precedes the act of IP enforcement decried by the anti-IP crowd.

I consider IP property. If you don't then there is nothing else to discuss. But because to me IP is property, I see the IP violator as the aggressor as I would any thief.

All property (physical or otherwise) is a monopoly by definition. The property owner claims an exclusive use right to his property. That makes his ownership of that property a monopoly.

And the implication of having such a monopoly is the application of force to maintain it. Whether it's the state, a private defense company or you with your double-barrel shotgun, the use of force is going to happen.

So what monopolies do the anti-IP people love? All property NOT called IP. In other words, the anti-IP crowd accepts monopoly (backed by the use of force mind you) of their land, their house, their car, their goldfish... and their body. All these monopolies are just peachy with them as is the force necessary to maintain them. Therefore, the "state imposed" monopoly argument is a red herring. Stop relying on it.

Since the monopolies they do enjoy must be enforced by someone, that someone is currently the state. In other words, the state is your friend in this case protecting your personal monopolies. Get over it.

The case for IP as a monopoly cannot be in dispute so long as you enjoy your personal monopolies. It would be hypocritical to do otherwise. The question is whether or not there *should* be a monopoly on IP. The answer is a resounding, "Yes!"

This is because we libertarians all agree that property in principle is the product of mixing one's labor and resources to create value. And "scarcity" is not in that definition.

Since IP meets that definition, then the producer of that property has created value and in exchange for that value should receive compensation. We call this capitalism. No one forces you to purchase the IP. It's completely up to you whether to consume it or not and the market sets the price.

If we agree then that IP is property in principle and that the producers of that property deserve compensation as do producers of all other forms of property, then mechanisms must be devised to facilitate this.

Those mechanisms are patents, copyrights, etc which have evolved over centuries in the traditional state. Are they the best we can do? I don't think so. Are they equitable? Maybe or not. Are they easy to administer and efficient? Definitely not.

But since when have the failures of the state been a justification to abandon principle? By that logic, we should toss out money altogether because the state has really screwed it up.

The problem isn't the state, it's the government and political class as it always is. Get rid of the government and recreate the state - a voluntary state without rulers or the anarchic state.

It's been done to a large extent in the past in ancient Athens but could be done better through the principle of equal freedom.

If you feel that way, then don't complain that the Fed is stealing from you by printing loads of money. After all, they aren't physically taking any out of your wallet. Now cue the "But that's different..." music.

Describe what a property is? How tall is a property? How wide? How much does it weigh? How fast is it? What color is it? The reason you can't is because "property" is itself only a concept - not an object in nature. It is a device that we as a society define it to be.

We can make the sky your property and the ocean my property. Either can be correct if they are DEFINED to be property by the society and we "own" them. Does it make sense to? No. But that doesn't mean it isn't possible.

The anti-IP people are arguing over definitions of "property" as if it were a physical object itself with physical properties without using their heads to consider its purpose.

They rest their argument on the "no true Scotsman fallacy" by saying (without admitting it) that even though IP meets the Lockean definition of property and there is a load of libertarian thinking in support of it, it's not TRUE property. But there IS NO true property because there is no such thing that exists beyond our imagination. And I imagine IP as property.

The concept of property is useful to creating a civil and just society. And to that end, we make IP property because it is the only means currently that allows the people who create it to be justly compensated for the value they create. The anti-IP argument is a bloviated smoke-screen to justify denying to IP producers their rightful compensation. We use another word for this... theft.

Excellent illustration to support my argument. What is rape? What is assault? What is aggression? Why do we care? Since these things are concepts to us, they can be whatever we decide them to be.

But they have meaning. Meaning we have assigned to them for a purpose. What purpose? To identify actions between men that we decide are harmful to our well-being. And we create laws to mitigate these undesirable actions.

The same goes for IP and the desire to see that the IP producers receive fair compensation for their labor and resources. Something that we do for every other type of property we produce.

"The concept of property is useful to creating a civil and just society. And to that end, we make IP property because it is the only means currently that allows the people who create it to be justly compensated for the value they create. The anti-IP argument is a bloviated smoke-screen to justify denying to IP producers their rightful compensation. We use another word for this... theft."

The concept of property is useful to creating a civil and just society. And to that end, we make slaves property because it is the only means currently that allows the people who enslave to be justly compensated for the value they create. The anti-slavery argument is a bloviated smoke-screen to justify denying to slave producers their rightful compensation. We use another word for this... theft.

I have an idea that will improve the quality of your life that I expended great labor and capital on to develop.

You take my idea (that you would not otherwise have had) and use it to improve the quality of your life without compensating me.

So your life has been improved by my effort, but if I demand that you compensate me in exchange for the value my idea has created for you, that means I'm making you my slave?

You didn't have to use my idea in the first place and no one is forcing you to use my idea. And if I'm not going to receive compensation for developing my idea, I won't. And obviously, if I don't develop my idea you are worse off for it.

As I've said, you are advocating for an intellectual tragedy of the commons that would make all of us much poorer. And your definition of slavery is twisted indeed.

But no matter. You can live in your society without IP and I'll live in mine with - if we're ever given such a choice.

@JTG - What if there were no coercion in the realm of IP? What if everyone in society agreed with IP in principle and agreed to honor the monopoly granted to the IP holder? Would you object to IP if the entire citizenry had given their explicit informed consent to honor the convention? If they all had entered into a contract to accept IP would you still think that IP was immoral or undesirable?

A couple hypotheticals for the pro-use-violence-to-prosecute-innocent-users-of-ideas people here. I draw these from RW’s Drudge formula hypothetical.

1. A and B marry. In their marriage contract, they include a covenant that states each of them will refrain from sexual relations with any third parties. B has sex with C. Can A sue C for damages under a contract theory? Why? If so, how do you define contract, since your definition will conflict with the common law definition (offer + acceptance + consideration)?

2. A agrees to allow B to photograph him naked, but only under the condition that B never shares the image with anyone else. B shares the image with C. C scans the image and saves it to his computer. What rights does A have against C? Can A rightfully seize C’s computer if C refuses to delete the image? What could a court legitimately order C to do with his physical property if C refuses to delete the image? What damages, under contract theory (so no defamation or violation of privacy, etc, those are torts, and that works entirely different from contracts) could A pursue against C?

I’ll add that I think RW’s biggest problem here is that he doesn’t know the difference between a contract and a tort. He’s essentially arguing in favor of a tort of something like “using an idea protected by contract”. That’s the only way you could get at third parties without discarding the concept of contract as it has existed for centuries. Of course, I doubt he’ll admit that. If he did, at least we all could have an honest discussion. Until then, I’d love to see how people answer the above hypotheticals.

I don't think the pro-IP position in this debate simply talking about "learning of an idea."

Here's an idea: If I water this plant it will grow. I can then eat the fruit of that plant. I don't own that process. Regardless of the sad state of IP disputes of late, nobody but the most myopic corporate lawyer, thinks that this is a good idea.

It is interesting: the fruits produced by man applying muscle and sweat are accepted as property by the anti-IP crowd (and the rest of us). Muscle and sweat – that which does not differentiate us from other animals.

Yet the fruits produced by man applying his brain – the one thing that differentiates us from the animals – cannot be property.

Perhaps this suggests something of the type of world the anti-IP crowd longs for?

That is incorrect, in fact the Economic Harmonies came out 10 years before Mill's book on Utilitarianism. Further, here's the Mises entry:

"Bastiat can also be seen as a link between the seventeenth- and eighteenth-century natural- rights theorists and some members of the modern Austrian School, most notably Murray Rothbard, who based their defense of free markets on natural rights, rather than merely on utilitarian arguments.[18] To Bastiat, collectivism in all its forms was both morally reprehensible (being based on legalized theft) and an impediment to the natural harmonization of human interests that is facilitated by free markets and private property."

That's a utilitarian statement. Government shouldn't be trying to "encourage" anything. And for the record, Jefferson, and Mills were at least intellectual honest enough to not call Patents and Copyrights some form of "Private property."

Regardless you're wrong. Kodak is probably the best example. They had constant R and D because they were constantly afraid that somebody would figure their stuff out and start under cutting them. Lack of IP rights actually encouraged them to constantly innovate so they could stay ahead of the curve.

This is quite different from resting on ones laurels because "now that I have a patent nobody is allowed to compete with me." Patents create monopolies. In fact that was their original purpose if you look at the history of mercantilism.

Something else just occurred to me. The anti-IP crowd will generally agree that there can be a contract between A and B about an IP product. But wait a second, isn't a contract a transfer of title of property? If IP isn't property, how can there be a contract in the first place?

And here is just a comment about the superiority of this medium. Rather than having one guy somewhere writing a book about this subject, we have dozens of minds bouncing ideas off each other on one web page, developing a theory.

This anti-IP individual does not agree that there can be a contract covering the sale of an idea. The contract can only cover the provision of a service - which is the service of revealing an idea.

If I am first to walk a path through the wilderness and discover wonderful views, I can sell you a map showing you this wonderful walk with a contract that you will not reveal it to others. But I do not own the path, the walk or the views or the idea. Others who see your map over your shoulder do not owe me money if they walk that path. Perhaps you owe me for letting the map be seen, but they don't owe me because I don't own an idea - I merely owned the service (my time and effort to reveal my idea to you).

"If IP isn't property, how can there be a contract in the first place?"

For the millionth time, when you sign such contracts, you're not actually signing a title to the idea itself. It's an illusion.

What you are really signing is a promise not to use your body in such a way and not to use your material property in such a way that would send out information signals that can be learned by other economic agents. You don't "have" the idea.

In the case of seeking the state to protect your idea, when you buy and sell copyrights, you are in fact signing a contract whose value derives from the police enforcement against others to prevent them from using their bodies and property in ways you don't approve, which enables you to earn above market profits. That is what you are paying for, not the idea itself.

Since Einstein has abandoned his studies by dying, I hereby proclaim myself the owner of E=MC^2 because I thought of this idea first.

I am now the most powerful person that has ever existed because I am now in control of all of the atom bombs and nuclear power plants in the entire universe. Get in touch with me if you would like to talk to me about contracts.

Thank you Bob. I have never given so much thought to IP than in the last week, and it's a subject I will be writing about in the future. Until recently I've somewhat blindly towed the 'Anti-IP" line simply because until now it just seemed that was the consensus libertarian position.

What drives me most crazy about this debate is how the Anti-IP'ers constantly take the "WELL THEN YOU ARE FOR THE STATE!!!" line. This is no more true than saying I am "for the State" if I report to the local police that my house was broken into and my TV stolen. The State has a monopoly on the reporting of crimes, who else am I to turn to? Because I use the State's monopoly to report the theft and attempt to reclaim my television or cash in a insurance claim , this doesn't mean I support the State any more than I do when I drive to work on a state road in state-registered vehicle.

I wish the State was gone, but it's not. In the meantime let's remove the "State" strawman from arguments over property rights and other areas.

Marc, you don't have to be an anarchist to oppose the concept of IP. I opposed it way before I developed into an anarchist. You're absolutely right that it has no baring on whether a private property right can exist or not.

Despite the assertions of Kinsella and others, Bob is clearly not advocating a state or statist solutions, but rather attempting to have a debate about what qualifies as "property" beyond the physical objects we all generally agree on.

It's a legitimate debate and one I'm finding fascinating and entertaining at the same time.

Not to mention, you are writing all these comments on a computer and on the internet. Both of these were partially funded and developed through government organizations and programs. You sir, are a statist for certain!

No, it isn't. Non sequitur. The Hertz car is a scarce good whereby if A uses it, B cannot use that same car.

With ideas, this is not the case. If A uses it, B and C and D and anyone else can use it without depriving the same idea from A.

You keep making the same errors over and over.

Wenzel's position in a nutshell:

WHAT'S THE NUMBER I'M THINKING OF WENZEL?!? WHAT'S THE NUMBER??!?

You don't know it do you?

That means the number 3784.2897687234892876490826387234 is hereby a scarce idea, and I can enforce copyright protection on it. Anyone caught using it without my permission, must pay me an undefined sum of money based on an undefined definition of IP!

Now where are those private security protectors who Wenzel claims he is using? Oh that's right, they're actually statesmen.

If you Wenzel are against the state enforcing of IP, then why the hell are you seeking the state to enforce IP?

This debate is fascinating. I'd to include the libertarian tradition of using hypothetical examples that have shock value. No one has done this better than Dr. Walter Block; and here is Murray Rothbard, in his introduction to "Defending the Undefendable," on the purpose and value of shock value cases he writes, "By testing and proving the extreme he all the more illustrates and vindicates the theory."

Id like to bring up a subject that I find to be a good "extreme case" and apply it to this IP debate: child pornography.

Now, after listening closely to the debate and reading the follow up comments, I have come to frame the question this way: Do individuals have a claim (property right) on information that has been obtained in an illegitimate manner? Kinsella argues claims cannot apply to information/ideas, and he does this by calling information/ideas not scarce. I think Wenzel clearly demonstrated that this is not the case. Since information is scarce, the real question (which I thought was the question all along) is can you have a property right in ideas/information? So I suggest the problem of child pornography, in which a child is forced to participate in sexual acts before a camera. The pornography is then made into copies and sold. The position of the anti-IP crowd, followed to its logical conclusion, is that the child (or a family member/guardian acting on their behalf)has absolutely no claim on the film in the possession of others not responsible for its initially filming. They would say that the original rapist/pornographers could be prosecuted, but that the tapes cannot be repossessed since they are the private (physical!) property of the child-porno buyers.

If you believe that the owner of a tape has more of claim to the tape than the victimized party, for whom the tape itself is a perpetual injustice, on what basis do you say this is right? You claim that the property right of the tape owner to his tape must take priority over the claim of the victim to repossess the tape (likely to have it destroyed)because you will only recognize rights in purely physical property. The question is all about rights. And to paraphrase Rothbard, all rights are property rights. Therefore if someone believes, as I do, that it is unjust to possess a tape that was made in a violent and criminal manner (by victimizing unwilling participants, who are also unwilling to have the tape distributed after the fact) then this property is not legitimate. I also believe that it IS legitimate for the victimized parties to repossess the property.

Do you believe that it is illegitimate for the victims to "steal" the tape. Could they be prosecuted for theft of a tape?

That in no way implies, for one, that the copies were made or distributed by the producers of the original tape nor any conspiracy of between copiers and the producers to rape children. So I can't assume the secondary tapes to were ever be the producers' property to begin with. The victims can only claim the culpable parties', the producers and potential conspirators, property. So the argument that the victim's have the actual title and can reposes the secondary tapes without assuming "IP" isn't necessarily true in your example.

Now if the conspirators did own the tapes during the copying and selling, then it could be argued that as a part of the restitution and punishment package, the title to those tapes were transferred to the victims thereby making the sold tapes the victims'.

Also, producing the tape and copying the tape produces no new property, unless you assume "IP". The tapes, the physical tapes that Rothbard and I both agree are property, already existed and were property. Changing their magnetism doesn't make them new property anymore than me crushing a can makes new property.

Come on, you said nothing to prove "IP" and only asserted that you do take it as true. It's like a Marxist demonizing me for not believing in the LVT by going "LOOK AT THIS GUY. HE'S PRO SLAVERY!".

About, "only recognize rights in purely physical property", isn't the dispute at hand over who has the right to physically control the tapes? Isn't property about exclusive control? Physical objects are innately exclusive/rivalrous unlike ideas/patterns/information. So exclusive control over ideas/pattern/information merely amounts to exclusive control over physical objects because of the very nature of things.

Let's quote Rothbard:"If I buy a VCR and a blank tape, I should be able to tape a movie or other program off my own TV set. If the TV or movie people don't like it, they should jolly well have to lump it."https://mises.org/journals/lf/1983/1983_07-08.aspx

If the only claim to the tapes the victims have is the tapes having audio/video of them being raped, well, they can lump it. The possessors are not invading anyone's property from a Hoppean perspective.

The fact that the tapes were copied and distributed beyond the guilty parties is exactly the point.

"So the argument that the victim's have the actual title and can reposes the secondary tapes without assuming "IP" isn't necessarily true in your example."

The only way the victims could repossess the tapes from parties not involved in the initial crime IS by assuming the validity of some kind of IP, since the tapes in the possession of the non-involved parties would have to be their protected physical property.

Now on what basis do you justify this: "Now if the conspirators did own the tapes during the copying and selling, then it could be argued that as a part of the restitution and punishment package, the title to those tapes were transferred to the victims thereby making the sold tapes the victims'." ?

Are you saying that those not involved in the initial crime could have the tapes confiscated, because of a "punishment package"? We are talking about parties that were not involved in the initial crime. How can they be part of the punishment? Only by allowing IP could the claim on these other parties' access to the material be justified.

"Also, producing the tape and copying the tape produces no new property, unless you assume "IP" "

It doesn't matter if "new property" is created by the tapes production. The point is: do the victims have a claim to the essential product- the movie itself- in whatever form it may take. Obviously the film could be put into many forms. Tapes, dvds, harddrives ect. Thus its not about control of a specific form (the tapes), but restricting access to the material in any form. Meaning that the victims should be able to go into the computer of the (initially)non-involved buyers and delete the material.

"If the only claim to the tapes the victims have is the tapes having audio/video of them being raped, well, they can lump it. The possessors are not invading anyone's property from a Hoppean perspective."

That is what the tape is. Video of them being raped. You imply that the tape is being claimed solely as a material object, and in doing so you don't address the real argument. It is not exclusively a question of who can control the object (tape), since its form can change. What you are really saying is that the tape possessors who weren't involved in its production are people who have a greater (or equal) claim to the rape-film itself, than do the victims. The case for IP is that people should be able to prevent others from accessing material that got out in an illegitimate manner.

"The only way the victims could repossess the tapes from parties not involved in the initial crime IS by assuming the validity of some kind of IP, since the tapes in the possession of the non-involved parties would have to be their protected physical property."

Again, this is just a demonizing tactic like Marxist shouting "LOOK AT THIS GUY. HE'S PRO SLAVERY!" in response to me not believing in LTV.

"Are you saying that those not involved in the initial crime could have the tapes confiscated, because of a "punishment package"?"

If the victim claimed the tapes before they were sold, yes.

"We are talking about parties that were not involved in the initial crime. How can they be part of the punishment? Only by allowing IP could the claim on these other parties' access to the material be justified."

They aren't a part of the punishment. The point is the sellers, the criminals, didn't have title to the tapes to transfer to the current possessors.

Do you know how if I, say, steal your TV and then sell it to my neighbor, my neighbor doesn't own the TV and the TV can be taken away from my neighbor by you? Sort of the same thing with the tapes in the criminals did actually own the tapes, raped the victim, and then sold them. The victim is entitled to restitution and punishment. The victim could've chosen the tapes, among other things, sometime before the tapes were sold to be theirs. The victim is, after all, entitled to restitution and punishment against the aggressors, right? Have you read Rothbard, Block or Kinsella on punishment and restitution?

"It doesn't matter if "new property" is created by the tapes production. The point is: do the victims have a claim to the essential product- the movie itself- in whatever form it may take."

It does matter because "the film itself" would be a new property right. I said "unless you assume IP" for a reason.

"That is what the tape is. Video of them being raped. You imply that the tape is being claimed solely as a material object, and in doing so you don't address the real argument."

No, I know full well you are asserting the film itself is property. I'm just giving you the reality that the film itself is only going to be expressed in physical property and the right to the film itself is going to have to be physical control of said physical property. The victim is going to have a right physically control those physical tapes, right?

"What you are really saying is that the tape possessors who weren't involved in its production are people who have a greater (or equal) claim to the rape-film itself, than do the victims."

No one has a claim to the film itself to begin with. It should be obvious what an anti-IPers stance on the claim to the film itself considering "ideas aren't ownable" and all.

"The case for IP is that people should be able to prevent others from accessing material that got out in an illegitimate manner."

And "material" and "got out in an illegitimate manner" that doesn't assume IP are?

Look man, I'm not claiming your position is pro-child pornography. Do you agree with the first bit you quoted from me? Namely, do you agree that if the victim goes to a third party (that was not involved in the initial crime) that possess the film (in whatever form)and forcefully demands that they destroy the material, this assumes IP? I get that you don't think IP is a valid claim, so you would say that they would not be justified in doing this. Fine. We disagree, that doesn't make you pro child-rape pornography.

Then you say the tapes could be reclaimed, "If the victim claimed the tapes before they were sold..."

Sure, but I'm talking about after they have been sold. As you say next: "Sort of the same thing with the tapes in the criminals did actually own the tapes, raped the victim, and then sold them. The victim is entitled to restitution and punishment. The victim could've chosen the tapes, among other things, sometime before the tapes were sold to be theirs"

Yes but after the tapes have been sold, what then? You recognize that the tapes belong to the criminals until they are transferred to the victim as the result of a punishment/restitution process. If the criminals owned the physical tapes, make the film, and then sell it to others, then your framework doesn't allow the title transfer to the victim of the sold tapes, since they(victim) did not own the physical tapes until the punishment process transfers them, and you would only permit the transfer from the criminals to the victim.

I am attempting to state the disagreement here, and I am not trying to demonize your position.It seems that we agree that "only by assuming" IP is it justified to intervene in the physical property of others based on their ability to access material. As you state at the end, "material" in this context does imply, or assume, IP.And in my view the "material" content is the justification for a higher claim on the physical property.

"I'm just giving you the reality that the film itself is only going to be expressed in physical property and the right to the film itself is going to have to be physical control of said physical property. The victim is going to have a right physically control those physical tapes, right?"

I completely agree that the issue is the victims ability to have control over physical property. However the tapes, to the victims, are not the exclusive goal of their action. The action is about access to a movie. The child-porno watchers want to see the movie, the victims don't want them to. The point is not that IP is a right to something purely ephemeral, but a justification for assuming control of someone else's physical property. I think it is a valid justification, you don't.

If you agree more or less with how Ive stated the disagreement (point out where I got it wrong), could we focus on the very last part? Why, specifically, I think it is a valid justification, and why you do not? I believe this necessitates a discussion of rights, and I am curious to know your view (you a natural rights guy?).

"I can hear now the mad howls of the anti-IP crowd that the formula C is using can not be scarce. Well, under a tortured definition of scarce, it may not be. However, if A is entering into a contract with B to protect a formula, it certainly means that A and B must believe the idea is scarce, otherwise why would they go through the effort of agreeing to a contract and, what's more, why would B go through the motions of agreeing to the contract which may involve risk of penalty if he reveals the contract?"

The mad howls of the pro-IP crowd continues.

It is not a "tortured" definition that ideas are not scarce. It is under regular, normal definition of economic scarcity grounded on rivalry. Who cares if A and B think they're trading a scarce concept? What matters is whether they ARE trading a scarce concept.

As it stands, they are trading a scarce set of concepts, but it isn't the idea. What they are trading is a promise of B refraining from moving his body and refraining from using his property in such a way that would otherwise send out particular information signals to others that the parties would rather not send out.

The reason this contract has value, has a price, is because of the discounted cash flows that accrue to the individuals who agree with each other not to send out the particular signals via certain body and property movements.

Now, assuming this information does get out, the contract can potentially be given another value, this time from hiring a third party to initiate threats of force to prevent other people from moving their own bodies and property in a particular way that might otherwise lower the potential profits that could be earned. The price here is the value of power, state power or private security power, whatever the case may be, to coerce others and violate their property rights, for the sole purpose of limiting competition.

The true libertarian is fine with the first type of contract, because it isn't invasive of other people's property rights. But the true libertarian is not fine with the second type of contract, because it is invasive of other people's property rights.

The fundamental problem with your worlview, Wenzel, is the same problem that Mises outlined in "Ultimate Foundations of Economic Science", namely, the terribly destructive tendency of people to hypostasize abstract concepts. You are treating ideas as if they are some "real" tangible thing. But they're not "real" things. They are mental (logical) categories of thought.

To lay claim to OWNERSHIP over such abstract categories of thought, is to lay claim to partial ownership of other people's brains and property. "You shall not use your brain and your property in this and this way". You are not owner of the idea in anyone's mind, even if you originated it. You are only owner of your person and material property.

Why do ideas have prices? Because of the scarcity of the MEANS BY WHICH IDEAS ARE CARRIED. Not the ideas themselves. They are not scarce. They can be used an infinite number of times by an infinite number of people without anyone being deprived of anything personal or material.

"If A has a contract with B by which A reveals a formula to B with the understanding that B does not reveal the contract to anyone and B violates that contract by telling C, then A has every right in such a society to demand that C stop using the formula in any fashion, including selling or revealing it in any way to others."

Is there any way to prevent C from using his newly acquired "owned" knowledge without violating the non-aggression principle?

"If A has a contract with B by which A reveals a formula to B with the understanding that B does not reveal the contract to anyone and B violates that contract by telling C, then A has every right in such a society to demand that C stop using the formula in any fashion, including selling or revealing it in any way to others."

Is there any way to prevent C from using his newly acquired "owned" knowledge without violating the non-aggression principle?

The argument would be that C's accessing/using the information is an implicit aggression against A (whether or not C is aware of this), and therefore A could use some degree of force to prevent the continued aggression.

"Look man, I'm not claiming your position is pro-child pornography. Do you agree with the first bit you quoted from me? Namely, do you agree that if the victim goes to a third party (that was not involved in the initial crime) that possess the film (in whatever form)and forcefully demands that they destroy the material, this assumes IP?"

That depends. As I've explained, there could be tapes, dvds, etc that were owned by the criminals and the claim of the victim would be more than owning the film itself.

"I get that you don't think IP is a valid claim, so you would say that they would not be justified in doing this. Fine. We disagree, that doesn't make you pro child-rape pornography."

Sure.

"If the criminals owned the physical tapes, make the film, and then sell it to others, then your framework doesn't allow the title transfer to the victim of the sold tapes, since they(victim) did not own the physical tapes until the punishment process transfers them, and you would only permit the transfer from the criminals to the victim."

They would own the tapes, the physical tapes the involved producers owned and then sold, the moment the victim claimed them in before going to court. The court would only recongize the title distribution.

"I am attempting to state the disagreement here, and I am not trying to demonize your position.It seems that we agree that "only by assuming" IP is it justified to intervene in the physical property of others based on their ability to access material. As you state at the end, "material" in this context does imply, or assume, IP.And in my view the "material" content is the justification for a higher claim on the physical property."

I know you think IP is justified, you don't need to repeat that.

'The point is not that IP is a right to something purely ephemeral, but a justification for assuming control of someone else's physical property. I think it is a valid justification, you don't."

Again, it doesn't need repeating.

"If you agree more or less with how Ive stated the disagreement (point out where I got it wrong), could we focus on the very last part? Why, specifically, I think it is a valid justification, and why you do not? I believe this necessitates a discussion of rights, and I am curious to know your view (you a natural rights guy?)."

I'm an argumentation ethics guy. "Ownership of the film itself" justifying control of the physical tapes is excluded by homesteading, voluntary title transfer, and restitution/punishment.